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TOWARDS GENDER EQUALITY:
MUSLIM FAMILY LAWS AND THE SHARI‘AH
Ziba Mir-Hosseini
THEORETICAL PAPER SUMMARY *
This paper examines conceptions of gender in Islamic legal thought and the challenges that
these conceptions present to the development of egalitarian Muslim family laws.
This paper provides some answers to two vital questions: if justice and equality are values
central to Islam, why are women treated as second-class citizens in Islamic jurisprudential texts?
If equality has become part of today’s understanding of justice, as many Muslims now recognise,
how can it be reflected in Muslim family laws?
The main points of the paper are:
1. Shari‘ah is the totality of God’s will as revealed to the Prophet Muhammad. Fiqh is the
process of human effort to identify and extract legal rules from the sacred sources of Islam:
the Qur’an and the Sunnah. Thus, the Shari‘ah in Muslim belief is sacred, eternal and
universal, whereas fiqh, consisting of the vast literature produced by Muslim jurists, is like
any other system of jurisprudence: human, mundane, not eternal, and local.
2. Jurists agree that the concept of justice is deeply rooted in Islamic teaching, and is integral to
the basic outlook of the Shari‘ah. Many verses in the Qur’an condemn women’s
subjugation, affirm the principle of equality between genders and aim to reform existing
practices in that direction.
3. But there have been long debates about what justice requires and permits, its scope
and its manifestation in laws, and its roots in Islam’s sacred texts. The dominant Ashari
school holds that our notion of justice depends on revealed texts and is not subject to
rationality that exists beyond religion. The Mutazili school, on the other hand, argues that our
notion of justice is inborn, has a rational basis and exists independently of revealed texts.
The paper’s author belongs to this second school of thought.
4. There are two distinct categories of legal rulings in fiqh: ‘ibadat and mu’amalat. The
former defines the relationship between humans and God and is thus immutable. The latter
defines the relationship between human beings and is open to reinterpretation given
changing circumstances. Legal reforms are intended to reflect changing realities. The
understanding of gender found in family law in the Islamic legal tradition is man-made, like
other laws in the realm of mu‘amalat. It is shaped by political, economic, social and cultural
forces.
5. The revelatory texts and the Prophet altered only some of the existing patriarchal practices of
the time (such as burying infant girls alive) and left others intact (such as polygamy). The
Qur’an and the Hadith set in motion a reform of family laws in the direction of justice that was
halted after the Prophet’s death. What the Prophet did was to rectify injustice and to
introduce justice, as these were understood in his day.
*
This is a summary prepared by Musawah. For direct quotes, please refer to the original paper in the
Musawah resource book, Wanted: Equality and Justice in the Muslim Family, edited by Zainah Anwar.
Ziba Mir-Hosseini, Towards Gender Equality: Muslim family laws and the Shari‘ah 1
6. The various fiqh schools all share the same inner logic and patriarchal conception of
marriage. The paper cites examples from classical scholars in which ‘ownership’ (tamlik)
shapes their conception of marriage and defines the rights and duties of each spouse.
Tamkin, (sexual submission) is a man’s right and thus a woman’s duty; whereas nafaqa
(shelter, food and clothing) became a woman’s right and a man’s duty. This classical fiqh
model of marriage is based on the ‘marriage of dominion’—a type of marriage prevalent in
pre-Islamic Arabia. Although the classical jurists redefined and reformed certain aspects of
the ‘marriage of dominion’ they did not change its essence.
7. In their understanding of the sacred texts, these jurists were constrained by a set of
gender assumptions and legal theories that reflected the social and political realities
of their age. Patriarchy and slavery were seen as the natural order of things. The concepts
of gender equality and human rights—as we mean them today—had no place and little
relevance to the classical jurists’ conceptions of justice.
8. Gender inequality in the Islamic legal tradition arises because of the contradictions
between the ideals of the Shari‘ah and the patriarchal structures in which these ideals
were translated into legal norms. Unfortunately, these legal norms came to be treated by
subsequent generations as though they were unchanging and as part of the Shari‘ah.
9. In the early twentieth century, fiqh provisions relating to the family were partially reformed
and codified, but in a way that created hybrid family laws that were neither classical fiqh nor
Western. Family law became the concern of legislative assemblies which had neither the
legitimacy nor the inclination to challenge premodern interpretations of the Shari‘ah. Deprived
of the power to define and administer law, fiqh and its practitioners were no longer
accountable to the community; they lost touch with changing political realities and new
knowledge such as the idea of gender equality. These developments in practice worked
against women. Fiqh became a closed book, removed from public debate and critical
examination.
10. In the second half of the twentieth century, attempts by Islamists to bring fiqh notions of
gender into public policy provoked criticism and spurred women to respond. The
Islamist defence of premodern patriarchal interpretations of the Shari‘ah as ‘God’s Law’ and
as the authentic ‘Islamic’ way of life brought the classical fiqh books out of the closet and
exposed them to critical scrutiny and public debate.
11. By the early 1990s a new way of thinking had emerged: a gender discourse that is
‘feminist’ in its aspiration and demands, yet ‘Islamic’ in its language and sources of
legitimacy. For many Muslims, the premodern notions of marriage in Islamic legal theory had
lost their power to convince. Instead, feminism and human rights have combined to bring a
new consciousness and a new point of reference for Muslim women and reformist thinkers.
12. Unlike earlier reformers who had searched for an Islamic origin for modern concepts like
gender equality, human rights and democracy, the new thinkers focus on how societies
produce religious knowledge. They revive the rationalist approach and emphasise the
spirit of law rather than its form. The works of thinkers such as Mohammad Arkoun, Khaled
Abu El Fadl, Nasr Abu Zayd, Mohammad Mojtahed Shabestari and Abdolkarim Soroush are
of immense importance.
13. Meanwhile, gender equality has become part of global conceptions of justice. It has
gained a legal mandate through international human rights instruments, notably the
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
CEDAW has been ratified by all Muslim states except Iran, Qatar, Somalia and Sudan (even
though with reservations in most cases).
14. Even those who support classical fiqh rulings on marriage and gender roles now talk about
‘Women’s Rights in Islam’ and ‘Gender Equity in Islam’, and cannot afford to acknowledge
that the classical jurists drew a parallel between sale and the marriage contract. This is proof
Ziba Mir-Hosseini, Towards Gender Equality: Muslim family laws and the Shari‘ah 2
that the classical fiqh definition of marriage has become irrelevant to the
contemporary experiences and ethical values of Muslims, and that a ‘paradigm shift’ in
Islamic law and politics is well underway.
15. Legal systems and jurisprudential theories must be understood in the cultural, political and
social contexts in which they operate. The new feminist voices in Islam indicate the coming of
a new legal egalitarianism. The 2004 Moroccan family code which establishes equality
between spouses is evidence of the new trend in family law reform.
16. Arguments and strategies for Muslim family law reform need to be concurrently placed
within Islamic and human rights frameworks. The distinction between Shari‘ah and fiqh,
and the demand for legal justice allow us to see the link between the two frameworks. We
can then defuse the opposition to gender equality from defenders of traditional fiqh and from
Islamists who use Islamic terminology to protect their views from critique.
17. Understandings of justice and injustice change over time. In the twenty-first century, the
provisions of CEDAW—which stands for justice and equality for women in the family
and in society—are more in line with the Shari‘ah than are the provisions of family
laws in many contemporary Muslim countries.
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